Tag Archives: Intellectual property

I have a suggestion for Copyright Week: Let’s ask the AAA to release their books and monographs into the public domain. After all, one of the easiest, most important, and least risky things the American Anthropological Association has ever done is to put into the public domain all of its journal articles published prior to 1964. By doing so, the AAA took our heritage as anthropologists and made it available to the world — exactly as it should be. The decision making behind this move was a little complicated (I can tell you about it later), but the decision making behind our next one doesn’t have to be. Let’s do the same for all the books and monographs the AAA hold copyright for — regardless of when they were published.Continue reading →

Over at his blog, Jason Jackson wonder whether that AAA supports HR 3699 or not. It’s a good question, but I think there is an even better one to ask: can the AAA support (or oppose) HR 3699? In other words, is there some sort of institutional structure and decision making system at work within the AAA that is actually capable deciding something in the name of the organization and then publishing it? Because frankly, even having the competence to decide to oppose HR 3699 in a timely fashion would be a step forward for the AAA.

The other side of the ‘can’ question is one of publicity: behind closed doors someone somewhere within the AAA may be giving the nod to whatever lobbiest we are allied with to oppose (or support) the AAA. Do they have the integrity to tell their membership what they are doing in our name? I am guessing that the answer is ‘no’, simply because any sort of public statement of this sort of back room dealing would immediately raise questions about proper procedure at AAA, which is exactly the topic these informal dealings are attempting to avoid.

So: can the AAA successfully, publicly, and in a timely fashion announce a policy decision it has made or will we have to wait 8 months for the next AAA meetings and a DOA panel entitled something like ‘HR 3699: An Important Topic Having To Do With $This_Year’s_Conference_Theme_Branding”?

Alex Dent sends word of the next international legal nightmare: the Anti Counterfeiting Trade Agreement (ACTA). The first thing to say is that, like TRIPS, this agreement is currently being negotiated behind closed doors, without any apparent consultation from any civil society representatives of any of the signatories. But unlike TRIPS, it is an “executive agreement” not a treaty, representing largely industry interests. If it were a WIPO treaty, it would be more transparent. I never thought I would say such a thing.

The second thing to say is that this is an agreement seeking a problem. It is ridiculously broad in scope, seems to have no respect for due process, and looks to me more like an attempt to institute a legal framework for automatically citing and fining non-sanctioned producers, users or distributors of just about anything covered by IP law. That’s just my reading though, check out what the large and growing community of critics say:

ACTA is the predictably deficient product of a deeply flawed process. What started as a relatively simple proposal to coordinate customs enforcement has transformed into a sweeping and complex new international intellectual property and internet regulation with grave consequences for the global economy and governments’ ability to promote and protect the public interest.

How the hell am I going to get access to study these uber-elite media companies? In my desperation to find ethnographic facts about ‘corporate culture’ at the new media conglomerated behemoths I am viewing these reflexive industrial videos Google and its subsidiary YouTube upload about themselves. What are these things? Part recruitment propaganda to solicit CVs from the world’s top engineers, part PR-campaign to provide proof of its post-China ‘do no evil’ mantra, part braggadocios chest bump and back slap these videos must have some information that can provide evidence for the ‘real’ internal values and dynamics that influence the 20,000 employees and the 100s of millions of networked people that use their digital tools daily.

But before I begin this bite-sized Youtube videothon I want to query if anthropological tools exist for such research. First, how would an anthropologist contextualize and categorize these videos? Reflexive, check. Industrial, check. Commercial, probably. They are not viewer-created but they have the amateur aesthetic. Textual studies of reflexive and industrial media and websites in anthropology is under-developed. In that historic genre, ‘ethnographic film,’ there were calls for greater reflexivity. And there are ethnographic investigations into the social life of social media. Patricia Lang, danah boyd, Heather Horst, and Mimi Ito can be consulted for this. And I am sure that there are numerous anthropological studies of race/class/gender as exhibited on Youtube. Alexandra Juhasz and Michael Wesch use YouTube as a pedagogical tech. But as far as I am aware, nobody has thought to look at how governments, corporations, and other institutions self-visualize a public persona. Secondly, who has analyzed the particular limitations and possibilities of this new platform for cultural expression? There is more cultural material on YouTube than in anywhere in the world. We must be able to incorporate this data.

The first order of analysis would be to use a political economic widget to find out what they hope to get out of this video. Usually, saying something about increasing profit and consumption is enough here. The second order would be to use textual analysis to look for accidental data points. Start with the simple realization that you are seeing into the company, notice the use of space, of the personalization of cubicles, etc. Thirdly, mix these two approaches, political economy and cultural studies, to read the subtle cues and beyond the avowed interview revelations. Pretend you have ethnographic free-reign, knowing that would always be partial even with clearance. As partial and incomplete as these video documents are a conjunctive approach will be necessary. My girlfriend suggested to me that a corporation’s IPO documents are usually remarkably honest and revealing. Also high-tech investment firms/websites such as Techcrunch keep publically available data on acquisitions, investments, and other reflexive materials. Ken Auletta’s book, Googled: The End of the World as we Know It, is incredibly revealing about Google corporate culture but is based on only a few interviews with Page, Brin, and a number with CEO Eric Schmidt. My point is that much can be done with little if the right tools are used.

The take-away nugget is that the internet provides tools and reasons for greater corporate transparency. Some corporations answer these calls to use the web to exhibit their tax records and to incorporate users/viewers/participants into internal and external regimes of governance and profit-generation. Other corporations expose their chain of production and distribution and how it misses layovers in child labor farms or despotic regimes and ecological disasters. This is all quite wonderful. But along with greater awareness and transparency is also greater capacity for manipulation of the veneer of transparency. So we must be vigilant in our textual readings of corporate transparency practices and perceive beyond the public persona to the numerous motives, values, and metrics for success that corporations deploy. We must figure out sophisticated techniques to study these powerful institutions. Textual study of the secondary and third order of values encoded in publically available online documents is one way. Even if new media corporations isn’t your anthropological fetish, it is certain that some strangely useful video about your fieldsite or subject exists on Youtube and you are going to have to explain your justifications for using it in your research. I invite us to co-develop these tools.

So I have an announcement: I have written, and published, A Book. I know that Savage Minds readers harbor the suspicion that we are all just doing this gig until someone pulls the curtain back and we have to dust off our barista aprons and work for a living, but I am actually in this for the long haul… The book is called Two Bits: The Cultural Significance of Free Software, and it is produced by the punkrockingest press ever, Duke University Press. It is now available for purchase, for download and for derivation and remixing.

I am extremely happy to finally be able to announce its arrival. I’m also happy to announce that it is part of a series edited by Michael M.J. Fischer and Joe Dumit called “Experimental Futures” of which Jeff Juris’ excellent book Networking Futures: The Movements against Corporate Globalization is also a part. And as well to thank HASTAC for helping out in its publication and in marketing it as well.

Two Bits has taken a long time, and it’s a better book for that. In some ways, it is untimely: the moment of Free Software is over– both the media and many of the scholars who focused so much attention on it starting in about 2000 seem to have moved on to some other next big thing. This is a shame, but predictable given the drive for novelty and for being first in academia. But I think (and I will throw modesty to the wind here) that anthropology has a tack on such things that is slower, more coherent, and more concerned with a certain precision in charting historical changes. I like to think that the book isn’t only about free software, but an anthropology of knowledge circulation more generally, and I hope that it interests even those who are too cool for old school.

Obviously I hope that others think the same thing, and I expect people to read it in light of the current peak of interest in web 2.0, social networking and internet celebrities, or whatever, which might be usefully re-thought through the lens of Free Software. And maybe it might just convince a few people, scholars especially, that the moment of Free Software is definitely not over, and that there is some really incredible scholarship out there by people like Gabriella Coleman, Matt Ratto, Shay David, Casey O’Donell, Jelena Karanovic, Anita Chan, Samir Chopra and Scott Dexter, Jenny Cool, Allison Fish, David Hakken and Karl Hakken, Jeff Juris (my labelmate!), Bernhard Krieger, Karim Lakhani, James Leach, Siobhan O’Mahoney, Greg Vetter and many others on these topics. Like the scholarship emerging on gaming (with Rex representing), that on Free Software constitutes a major locus of scholarly concern and questioning that should be the basis for understanding much of the recent past and near future.

Having been through the process of publishing a book, like oneman, I wish we could publish our books faster, and try to merge some of the timely but ill-considered insight of the blog-form with the deliberate and peer-reviewed caution of the book-form… but I’m nonetheless a committed modernist in that I think the book-form has a quality that no other form of communication has, and it has taken centuries for that quality to develop. Nonetheless, nothing lasts forever, and since this is a book about software, there are a few special things that I want readers to know about this book:Continue reading →

There has been some discussion on SM concerning the possibilities and implications of digital technologies in relation to indigenous communities, most notably when Michael Brown was a guest blogger. I mentioned in my first post that the reason I was in Tennant Creek over the last two months was to install a digital archive in the Nyinkka Nyunyu Art and Culture Centre in town. I’ll just give a brief overview of the project and then discuss the possibilities I see growing from these types of projects.

The Mukurtu Wumpurrarni-kari archive was developed collaboratively over the last two years by myself, Warumungu community members, Craig Dietrich, Tim Dietrich (software developers) and Chris Cooney (designer). Mukurtu means ‘dilly bag’ in Warumungu. Dilly bags were used as safe keeping places for sacred materials. The archive is thus a “safe keeping place.”

The gist of the project is this: Warumungu community members wanted a way to manage the digital materials they received from a number of sources—mainly researchers, teachers and missionaries who had once worked in the community. How could they store, organize, distribute, and allow access to these images based on the Warumungu cultural protocols that surround viewing and distribution of images and the associated knowledge that goes with them?

Over two years of consultation, we developed a browser-based digital archive (using a MySQL database and PHP scripting language, the archive runs locally on an iMac in a MAMP web environment—Mac OSX, Apache, MySQL, PHP—for those techies out there) using the cultural protocols to drive the technology. That is, the information architecture of the system was driven by the specific Warumungu cultural protocols for the viewing, distribution, and reproduction of images. There is a detailed summary concerning the functionality of the Mukurtu Wumpurrarni-kari Archive on my blog.

Over the last few years of development I have met several people involved in similar projects—mainly in Australia (I’d love to know about others). Finally having Mukurtu installed in Tennant Creek though gave us the opportunity to 1) think of ways to develop it further in the context of Nyinkka Nyunyu as an art and culture centre and 2) reach out to others to find ways to improve and share what we have. We have begun to develop a framework for a flexible system that would allow other communities to customize the system to fit their own cultural protocols–what we need now are more developers! Although at present most of the content in Mukurtu is from personal collections, the goal is to now reach out to museums and begin a process of virtual repatriation of Warumungu cultural materials. The South Australian Museum and the Museum of Victoria have already loaned physical objects to Nyinkka Nyunyu for their museum space. These objects are displayed at Nyinkka Nyunyu and are accompanied by Warumungu narration.

The local archive allows for thousands more objects to be virtually repatriated at a fraction of the cost. Mukurtu allows for the content to be curated by individuals in the community. People can tag the content with restrictions, add multiple stories and recollections, and sort it by culturally relevant categories. People can also print images or burn CDs and thus allow the images to circulate more widely to others who live on outstations or in other areas. In fact, one of the top priorities in Mukurtu’s development was that it needed to allow people to take things with them, printing and burning were necessary to ensure circulation of the materials.

Digital archives—powered by Indigenous protocols and intellectual property systems—have the potential to create a mutually beneficial relationship between the institutions that hold Indigenous materials and the communities to whom they belong. Even if one thought that all objects should be repatriated, most Indigenous communities don’t have the money or facilities to store the objects properly. Many communities want museums to keep their objects safe—they want a voice in the way they are displayed and curated. Digital projects can provide one avenue for Indigenous curation. One great example of this is the Virtual Museum Canada project. The Canadian government has funded many First Nations web based museum projects (see the Dane Wajich project by the Doig River First Nations community).

There is potential, then, for digital archives and other web-based projects (that take seriously and integrate Indigenous protocols) to reanimate the terrain of museum display, curation, and information management and to establish collaborative development projects between technologists, anthropologists and communities. Local archives, “safe keeping places,” that use Indigenous cultural protocols to define access and distribution parameters should not be read as closing down the commons or sealing off information. Instead, these projects give us a way to interrogate the limits of commons-like narratives about information or information freedom. They give us a way to redefine access and control apart from big business models. They allow us to examine different modes of information distribution and reproduction and the ways in which these systems maintain and create knowledge through their specific protocols. These archives are as much about production as they are preservation—in these cases the two are intertwined. Can these systems also inform the larger debate about access to information in relation to digital technologies? They seem poised to do so.

I was thinking about recent discussions on Savage Minds, from Laura’s posts on anthropology and torture, to the petition posted by Oneman when I heard this story on NPR’s On the Media. It discusses how music is being used in interrogations at Guantanamo.

The piece is relevant to Laura’s posts in that the use of music is based on the Army’s own cultural theories about Muslims:

the music that was picked was picked partially because it was aggressive and loud, and it was also meant to be insulting to a Muslim. A lot of very devout Muslims don’t believe they, you know, are allowed to listen to music at all, let alone sort of Western music.

The broadcast, together with a followup piece, also touched on how musicians have reacted to the use of their music in interrogations. This includes efforts to sue the US Government for royalty payments as a kind of protest. The different attitudes of the two bands discussed by David Peisner is interesting. The bassist for Drowning Pool said:

kids in America pay to listen to music. You know, if the worst thing that happens to these guys who are detained that, you know, that they get blasted with loud music for a few hours, I don’t see what the harm is, especially if we might be able to prevent a future terrorist attack.

While the members of Rage Against the Machine “sent letters to the State Department and the Armed Forces to try and stop this from happening.”

I wonder how current debates on this blog would be recast if discussed in terms of music. Would signing a petition against the use of music in interrogation somehow restrict the artistic freedom of musicians? Would failure to sign such a petition meant that artists whose work was used by the military were somehow complicit? Is the really interesting anthropological question the theory of culture in which loud music is considered fun for American youth but torture for Muslims? These are complex issues and I thought it might be interesting to look at them from another angle.

Eric Kansa, who has new job (congrats!), recently posted this article to iCommons about the possibilities and limitations of open access/creative commons models for indigenous communities. After discussing the benefits of openness to indigenous communities, as well as some examples of successful online projects, he discusses the limitations of existing legal frameworks to protect open content on the web:

While openness is empowering we need to remember that participation in open, collaborative systems should be a matter of choice and not compulsion. Few advocates of the commons would argue that it is ethical to broadcast confidential medical records or other personal secrets without the consent of people who are well informed of the risks of such exposure. Putting an “Attribution” licence on such content won’t make it any more ethical. In the same way, members of the global Commons need to recognise that ideas of privacy and secrecy vary widely, and indigenous ideas of what’s sacred, private, shareable, or secret vary tremendously. While Creative Commons licences can be a powerful tool for indigenous cultural expression, there are some cases where Creative Commons licence choices map poorly to local needs (Kansa et al 2005). To fill these gaps, other, non-standard, and incompatible licences may emerge as a result. Many elements of indigenous cultural heritage will probably never be neatly and cleanly compatible with global conceptualisations of “free culture” operating on a bedrock of compatible open licences. Much cross-cultural communication will likely take place in a necessarily “messy public sphere of contest, debate, and protest” (quoting Hayden 2003:46).

Bill Poser argues that “citation plagiarism is not plagiarism at all” but I disagree. True, if we are just talking about one citation it doesn’t really matter much if the author just skimmed through something on a colleague’s shelf or truly slaved over a difficult tome. But that is not what is at stake in the Finkelstein-Dershowitz dispute. Here is a summary of Finkelstein’s position on Dershowitz:

Finkelstein’s principal response is that Dershowitz’s quotations and citations of primary sources (where Dershowitz does not cite Peters) contain obvious errors that Dershowitz could not have made if he had checked the primary sources himself, and that Dershowitz’s errors are identical to Peters’ errors concerning the same primary sources. (Beyond Chutzpah, pp. 230-231) Finkelstein infers that Dershowitz copied the quotations and citations from Peters rather than checking the primary sources himself.

This is one of the most common forms of plagiarism I encounter as a teacher. Plagiarism is passing off other’s scholarship as if it were your own, and nothing is easier than to extensively cite sources you have never read but found cited in another person’s work. Thus, it is not the mere fact of citation that is at stake, as Poser mistakenly infers, but rather the wholesale appropriation of another scholar’s academic labor, warts and all.

However, even if we discuss the kind of practice Poser does find acceptable, where someone simply lists a source they know is important even though they have not read it carefully themselves – I still must beg to differ. For one thing, it is the source of much intellectual laziness. People cite the works of major thinkers without bothering to read more than someone else’s summary of their ideas, and the ideas themselves get diluted to the point where they no longer serve any analytic value. (Mere hand-waving, if you will.) The problem is that it isn’t enough to cite Bourdieu if you mention “habitus” or to cite Appadurai if you mention “ethnoscapes” etc., these ideas are overdetermined (cf. Althusser) and require each scholar who uses them to explain again what exactly they mean by the term. Instead, we get one-line critiques or pat summaries with an obligatory citation. Of course, if this were a crime the anthropology job market would be much better than it is.

I think this problem is particularly acute when people are working with second-language materials. Among Taiwanese students (and foreign scholars of Taiwan) it is not uncommon to list a lot of sources which you have not personally read. This serves to convey a much stronger grasp of the target language than the student may really have. In such cases there is still a wide range of practices, ranging from the full-scale copying of someone-else’s quotations to simply mentioning important sources, and I agree with Poser that these shouldn’t all be treated the same. Still, just as I think bloggers should give credit where credit is due when linking to an article they found on someone else’s blog (e.g. “hat tip to X”, “via X”, etc.) scholars should also endeavor to identify where they found citations if they are not works they themselves personally read (e.g. “Y cited in X”).

This book is an outcome of the Libraries and Indigenous Knowledge Colloquium held at the State Library of New South Wales in December 2004. The editors have taken advantage of the opportunity provided by the substance and scope of the papers presented at the Colloquium, and the degree of professional interest in the issues associated with Indigenous Knowledge in libraries and archives, to put together an edited collection that is accessible to a wider audience. If it is possible to guide the way readers respond to this collection, then perhaps the first thing the authors would like readers to take away would be an appreciation and understanding of the complexities that professionals must engage with in meeting the needs of Indigenous people and the issues associated with managing Indigenous knowledge. From the Indigenous perspective, we can well understand the profession’s desire to have clear prescriptions for practice and practical assistance. However, the path to developing clear and high standards of practice in this area rests on building a strong foundation for understanding what informs the concerns of Indigenous people about the intersection of our knowledge and cultural materials with library and archival systems and practice. This requires a broad sweep across issues of knowledge, culture, history, heritage, law, and information technologies. It requires consideration of articulations between the local/global, the Indigenous/Western, and traditional/contemporary dualities. Most importantly, it requires professional understanding at a level deep enough to generate problem-solving and innovations to practice to overcome the manifold tensions that emerge across all these in a diverse range of situations.

Note: The official permanent URI does not work. I have instead linked to the UTS press URI which does, and filed a report to handle.net.

About Chris Kelty’s (03/15/07 this site) suggestive comparisons between copyright and informed consent, and particularly the notion that both “actually diminish rights of subjects regarding the control of information, rather than protecting them”: remember that, even though the IRB system is federal (with a central Office of Human Research Protections apparently coordinating the application of regulations), IRBs are local and control their own procedures. As far as I know, IRB researchers agree that local IRB practice “varies”. The point here is that there is no standard IRB consent form.

My institution’s IRB takes a minimalist approach. Our “Standard Adult Consent” form (which, like many other universities’ IRB materials, is available online) is two pages long, the second page devoted simply to contact information. The main page has a place in which the researcher needs to insert a straightforward (non-jargon) description of the project. Apart from this researcher-generated text, the consent form asserts that the signer affirms only that s/he has been informed about what s/he will do as a research participant. The form includes the mandated language (http://www.hhs.gov/ohrp/humansubjects/assurance/consentckls.htm) that participation is voluntary and that consent can be withdrawn and participation discontinued at any time without penalty. But it adds that “By signing this agreement, I do not waive any legal rights or release Princeton University, its agents, or you from liability for negligence”.

This minimalist approach lives up to regulatory requirements and also affirms a best-case interpretation of what the regulations aimed for: it is clearly aimed to avoid creating an institutional shelter.

In contrast, for example—just to use Chris’s institution—the Rice “Consent to Participate” form simply provides the required assurances about the voluntary nature of participation and rights to withdraw without penalties.

It might be interesting to compare other university forms: so folks, what rights does your local IRB consent form protect or not protect?

2. Disciplinary diversity in the ‘researcher relation’ and its ethics:

I agree completely with Tom Strong’s (03/17/07 this site) sense of the contradiction between naming or authorship (associated with IPR claims and their related local values, like the Papua New Guinean ones he mentions) and confidentiality (associated with both ethnographic ethics and IRB emphases). IRBs presume one kind of researcher/researched relation derived from medical research, in which confidentiality makes sense since participants are vulnerable “subjects”. They are brought into lab settings within which–for the resulting data to be usable–information cannot be shared but must be carefully controlled by the reseacher.

But IRBs these days regulate a very wide variety of fields whose methodologies involve diverse research relations. Fields whose reseach relations tend to be collaborative–involving, for example, the sharing of information and other colleague-like assumptions about intellectual and social agency–are closer to the model that Papua New Guineans—and lmichael’ (03/17/07 this site) Amazonian field communities—prefer. They’re quite different from the medical model of the research relation.

Oral History ethics are perhaps the most elaborate in treating “narrators” as the authors of their narratives: going way beyond even recent anthropological practice. The OH convention is for narrators to hold copyright to their own words and to specify who (if anyone) may have access to the transcripts and recordings.

In this consent discussion, John McCreery (03/18/07 this site) invokes “the spirit of free choice”—and the journalist’s allowing on- or off-record commentary. This position appears consistent with the Belmont principle of “respect” (foundational to the regulations that IRBs enforce). Is it? Why does such a stance tend not to make sense to your average IRB?

My answer is that we’re dealing with incommensurable perspectives on the research relation. John’s (or Tom’s or Michael’s or my, etc.) interlocutors are construed (and construe themselves) as autonomous agents, whereas—following the medical model and its frightening worst cases—IRBs are responsible for “human subjects”: persons construed as “vulnerable” and in need of protection. What is more, bureaucratic rationality demands a disinterested consistency. From that central(izing) vantage, our divergent ethical positions don’t sound principled (they are not heard as issuing from different ethical stances) but simply self-interested (unenlightened, irrational).

Very like audit culture (using Marilyn Strathern’s sense of this term), bureaucratic ethics culture defines the dominant language of best practices. It demands that diverse disciplinary research relations be translated, so to speak, into one ethics language. The burden of translation is, as things presently stand, entirely ours.

As Michael Brown’s story suggests, that doesn’t necessarily mean a surrender of our principles…

[UPDATE: Added links for comments, and gave LMichael credit for a comment previously attributed to Michael Brown. – Ed.]

I’ve just returned from the Association for the Social Anthropology of Oceania meetings in Charlottesville, Virginia (more on which later). One of the sessions I sat in on at that meeting was the one on “interpreting the discourse of intellectual property rights in the Pacific”:http://asao.org/pacific/2007sessions/02intellectualproperty.htm. Most of the participants at the session had a sense — to put it very roughly — that they did not like it when representations of indigenous people and knowledge about them slipped out of the control of indigenous communities. At the same time, many felt disatisfied with the solutions offered by the appurtenances of copyright, trademark, and patent. At the same time, given the power differentials that exist between indigenous people and enormous corporations (and other bad guys) it seems that Pacific islanders have to use something like the law to get the leverage necessary to level the playing field

Many of the papers in the sessions discussed alternatives to IP drawn from Pacific. Although not much of a practical solution (we won’t have IP laws based on Sepik cosmology coming to a Parliament Near You anytime soon) they did offer some ways to think out of the box about how to approach property etc.

But what other options were there? How do we find a language (other than IP) to speak about the ways to control the flow of information about you when it slips out of your graps and starts circulating in wider spheres. The solution, it seemed to me, came from my own (or perhaps just Strong’s) native theory of semiotics: branding.

A striking development that has come out of the last decade’s concern with indigenous IPR and, more broadly, with the world’s mad scramble for rules of cultural ownership is the rise of global initiatives to identify and protect anything defined as “heritage.” UNESCO is the single biggest player here, but UNESCO discussions have spawned new bureaucracies in many parts of the world.

Some experts close to the process see this as a good thing. Their argument is largely a pragmatic one: at least the world is talking about this stuff and finally taking measures to protect heritage from IP piracy. If you want to get the general flavor of this, click here to read about South Korea’s current efforts to define and preserve whatever it defines as its cultural heritage.

Although I’ve met many people involved with heritage protection and generally find them smart and motivated by the best of intentions, I’m a heritage protection skeptic, which puts me in good company. For a bracing critique full of tart humor, check out David Lowenthal’s article “Heritage Wars,” published in a UK online magazine last year. Other recent contributions to the skeptic’s position include Rob Albro’s 2005 essay “Making Cultural Policy and Confounding Cultural Diversity,” as well as a recent essay by Dorothy Noyes called “The Judgment of Solomon: Global Protections for Tradition and the Problem of Community Ownership,” accessible here.Continue reading →

If you’re interested in how images move and morph in a digitally linked world, check out a recent essay in Harper’s about “Molotov Man,” who was born in a photograph taken by Susan Meiselas in revolutionary Nicaragua in 1979. (Work by Meiselas can be seen in the website of the photo agency Magnum.) It was subsequently appropriated for artistic and political purposes in Nicaragua and beyond.

Molotov man is the subject of the Harper’s article “On the Rights of Molotov Man:
Appropriation and the Art of Context,” by Susan Meiselas and Joy Garnett, published in the February issue. It also figures in the multimedia record of an NYU conference, Comedies of Fair U$e,” held in April 2006. The conference attracted such fair-use heavyweights as James Boyle, Lawrence Lessig, Siva Vaidhyanathan, and Jonathan Lethem.

Does anyone know of specific indigenous images that are this well-traveled?

A curious development in the struggle to protect traditional knowledge (TK) from unwanted exploitation by outsiders is a strategy called “defensive publishing.” This largely applies to the realm of the patent, not copyright or trademark, because patents are supposed to be granted only for processes, substances, or devices that are truly novel. (There are other criteria as well, but they needn’t concern us here).

If you can prove that something isn’t novel, that it has been known and used for a long time, then it can’t be patented.

To defend traditional knowledge from exploitative patenting, then, there are two basic and fundamentally opposed choices under existing law: define it as a trade secret or protect it in plain view. The goal of the latter is to establish that patent applicants who make use of this information fail to meet the novelty standard.

Although the trade-secrets approach sounds promising, and some legal scholars argue that it’s the way to go for the protection of traditional IPR, it has certain problems. For one thing, a lot of TK isn’t especially secret. It is, almost by definition, in wide circulation within a society. Trade-secrets laws typically say that anyone who can duplicate trade secrets independently–say, through reverse engineering–is free to use them. Still, one can argue that the Aboriginal “keeping-places” emerging in Australia, repositories for TK that have strict rules of access, follow something like a trade-secrets approach. To a more limited extent, protocols for the use of Native American TK in American archives are moving in a similar direction.

The plain-view approach has been adopted in a few important cases–notably, that of Ayurveda, which is documented by the Indian government in the Traditional Knowledge Digital Library. (Site is publicly accessible but requires a simple registration.) The idea is to establish “prior art” and therefore refute claims of novelty.

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